1. Applicant's Name: a. Application Date: 16 March 2018 b. Date Received: 19 March 2018 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade bad conduct discharge to honorable and to change the narrative reason for discharge. The attorney on behalf of the applicant seeks relief contending, in pertinent part and in effect, at the time of the applicant's court-martial conviction, had served over 19 years. (The attorney detailed the events and circumstances leading up to the court-martial charges, and the applicant subsequent actions with self-correcting mistakes and dedicating oneself to the anti-drug efforts with the local civil authorities.) The attorney asserts that the "significance and selflessness of the applicant's post-misconduct cannot be overstated." Although the military judge recommended to suspend the discharge for one year to allow retirement, the applicant was not granted the suspension. The applicant "committed oneself" to personal recovery due to "unfortunate drug use." The applicant enrolled in "Alcoholic Anonymous, Narcotics Anonymous, and ASAP and has been sober since 2006." The "drug use was a temporary lapse in judgment during a 19-year career" with the US Army. (The attorney listed the applicant's post-military employment history.) Members of the community "support the request for upgrade," and the applicant's awards and recognitions attest to the character. In a personal appearance hearing conducted at Arlington, VA on 28 January 2019, and by a 5-0 vote, the Board determined that clemency is warranted based on the applicant's length and quality of service, a prior period of honorable service, and post-service accomplishments. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to other than under honorable conditions. A change in the reason for discharge is not authorized under Federal statute. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Court-Martial, Other / AR 635-200, Chapter 3 / JJD / RE-4 / Bad Conduct b. Date of Discharge: 17 February 2006 c. Separation Facts: (1) Pursuant to Special Court-Martial Empowered to Adjudge a Bad-Conduct Discharge: As promulgated by Special Court-Martial Order Number 12, dated 3 November 2004, the applicant was found guilty of the following charges: Charge I: two specifications of violating Article 112a, UCMJ: Specification 1: wrongfully using cocaine between 6 December 2003 and 9 December 2003 Specification 2: wrongfully using crack cocaine on 1 January 2004. Charge II: Violation of Article 92, UCMJ, for failing to obey a lawful order not to have contact with PFC J.L., on 3 January 2004. Additional Charge: Violation of Article 112a, UCMJ, for wrongfully using cocaine between 23 January 2004 and 26 January 2004. (2) Adjudged Sentence and Date: Reduction to E-3, to be confined for 135 days, and to be discharged from the service with a bad-conduct discharge. The sentence was adjudged on 26 May 2004. (3) Date Sentence Approved: On 3 November 2004, the sentence was approved, and except for that part of the sentence extending to a Bad Conduct Discharge, would be executed. (4) Appellate Reviews: According to Special Court-Martial Order 224, dated 9 December 2005, the promulgated findings and sentence of SPCM Order No. 12, dated 3 November 2004, had finally been affirmed, and ordered the execution of the Bad Conduct Discharge. (5) Date Sentence of BCD Ordered Executed: 9 December 2005 4. SERVICE DETAILS: a. Date / Period of Enlistment: 17 January 2003 (per DD Form 214) / Ordered to AD from 26 May 2004, for two years, pursuant to Orders A-01-600941, dated 12 January 2006, for the purpose of UCMJ processing, and amended by Orders A-01-600941A01, dated 17 January 2006 b. Age at Enlistment / Education / GT Score: 36 / Bachelor of Science in Nursing (Aug 1996) / NIF c. Highest Grade Achieved / MOS / Total Service: E-7 / 42L1P, Administrative Specialist and 44E10, Machinist / 19 years, 7 months, 22 days (per DD Form 214) (includes 491 days of involuntary excess leave, creditable for all purposes except pay and allowances from 15 October 2004 to 17 February 2006) d. Prior Service / Characterizations: USAR (25 May 1983 to 29 June 1983) / NA ADT (30 June 1983 to 2 September 1983) / NA USAR (3 September 1983 to 26 September 1983) / HD NGB Form 22 ARNG (27 September 1983 to 23 May 1984) / NA DD Form 214 ADT (24 May 1984 to 5 September 1984) / HD ARNG (6 September 1984 to 13 May 1986) / NA DD Form214 ARNG (14 May 1986 to 30 June 1997) / HD (includes AGR status) ARNG (1 July 1997 to 14 July 1997) / HD (include extensions) USAR (15 July 1997 to 11 January 2003) / NIF USAR (12 January 2003 to 16 January 2003) / NA (Continuous Service) (Note that the above period of service and statuses are not all documented, either by orders to active duty and/or enlistment extensions.) e. Overseas Service / Combat Service: None / None f. Awards and Decorations: ARCAM-2; AGCM; NDSM-2; AFRM; NCOPDR-2; ASR g. Performance Ratings: One NCOER rendered during period of service under current review: February 2003 to June 2003, Among the Best h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order No. 224, dated 9 December 2005, described at the preceding paragraphs 3c(4) and (5). i. Lost Time / Mode of Return: 112 days (Military Confinement from 25 June 2004 to 14 October 2004) / The applicant was released from confinement upon completing his sentence. j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 16 March 2018; and attorney-authored brief with listed attachments labeled Tab A through K. 6. POST SERVICE ACCOMPLISHMENTS: The applicant's documentary evidence indicates the applicant's employment in a variety of capacities, including as a civilian contractor, and currently, a bowling lane proprietor and bowling coach in a middle school and high school. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, Section IV establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed. Because relevant and material facts stated in a court-martial specification are presumed by the ADRB to be established facts, issues relating to the applicant's innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the ADRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JJD" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 3, Court-Martial (Other). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JJD" will be assigned an RE Code of 4. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his bad conduct discharge to general (under honorable conditions) or honorable and to change the narrative reason for his separation. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. The record confirms there was full consideration of all faithful and honorable service, as well as, the misconduct incidents. The service record indicates the applicant was adjudged guilty by a court-martial and the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Army Discharge Review Board (ADRB) is empowered to change the discharge only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. Because relevant and material facts stated in a court-martial specification are presumed by the ADRB to be established facts, issues relating to the applicant's innocence of the charge for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the ADRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, and his post-service accomplishments, the Board can find that his complete period of service and his accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The third party statements provided with the application speak highly of the applicant's character and performance. However, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None b. The applicant presented the following additional contention(s): None c. Witness(es) / Observer(s): None 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 28 January 2019, and by a 5-0 vote, the Board determined that clemency is warranted based on the applicant's length and quality of service, a prior period of honorable service, and post- service accomplishments. Accordingly, the Board voted to grant relief by upgrading the applicant's characterization of service to under other than honorable conditions. A change in the reason for discharge is not authorized under Federal statute. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Under Other Than Honorable c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20180006330 4